According to the Human Fertilisation and Embryology Authority, the number of IVF cycles in the UK has increased tenfold since 1992, and success rates have tripled in the last 20 years. In 2022, the UK Government extended the storage limit for frozen embryos and gametes (sperm) from 10 years to 55 years.
Increasingly, couples choose to freeze embryos rather than gametes as they have a higher chance of live births. However, once genetic material has been joined, both parties must agree on what shall happen with the embryo.
And when a relationship breaks down, many couples have had to face the unexpected question of what should happen to their stored embryos. In this piece, we’ll examine what happens to the frozen embryos in a divorce in the UK.
Consent
The Human Fertilisation and Embryology Act 1990 regulates what is allowed in respect of frozen embryos. The law requires that informed written consent must be given by both ‘would-be’ parents for use of the embryos. Such consent can be withdrawn at any time until the embryo has been transferred to the womb. If consent is withdrawn, a 12-month ‘’cooling’’ off period begins. If, within this time, the individual refuses to provide consent, treatment cannot proceed, and the UK court cannot override the withdrawal of consent.
The case of Natallie and Howard Evans highlighted how when balancing one’s right to be a parent with another’s right to autonomy, the right to family life does not override the withdrawal of consent. In 2007, the couple froze several embryos, before Natallie underwent ovarian cancer treatment. The couple then separated, and Howard withdrew his consent for Natallie to use the embryos. The case was taken to the European Court of Human Rights, which considered the case in the context of the right to life (Article 2), right to respect for family life (Article 8) and prohibition of discrimination (Article 14). The Court ruled that Natallie’s right to become a parent did not deserve greater respect than Howards’ right not to have a child with her. This meant that the embryos had to be destroyed.
If a couple, whilst living in England and Wales, chooses to store embryos in another jurisdiction, then the law of that country would prevail. Certain states in America, such as California, view frozen embryos as property. Yet others, such as Louisiana, view them as persons. In 2012, the Reber v Reiss case in Pennsylvania had the same facts as Natallie and Howard. Nonetheless, in this case, the wife was awarded the embryos. The court in the US adopted a balancing approach and found that the wife’s inability to conceive naturally following cancer treatment outweighed the husband’s desire to have no further children after conceiving with his new partner.
Legal Parenthood
Unlike some states in the US, frozen embryos are not treated as ‘matrimonial property’ in the UK. Therefore, the family courts cannot make any orders about their division or distribution. If both parties provide consent for them to be used in fertility treatment post-separation, there are likely to be implications in respect of legal parentage and legal obligations for the support of any child.
This can be a particularly important consideration in a scenario where an individual may wish to ‘donate’ the embryo to their ex-partner. An individual can donate their embryos but not to the person they created them with. Therefore, if the individual agrees to their ex-partner using the embryo in treatment, unless their ex-partner is married or in a civil partnership, there will be child support obligations for the donor.
Legal parentage is considered in line with the Human Fertilisation and Embryology Act 2008. Under this UK law:
- Where an embryo is used in treatment and parties are married, both shall be legal parents unless it is shown that one does not consent to legal parenthood.
- Where an embryo is used in treatment and the parties are unmarried, the party that gives birth to the child will automatically be recognised as the mother. For the other party to be recognised as a legal parent, additional consent to legal parenthood must be given.
However, a registered sperm donor will not automatically be the legal father of any child born as a result of his donation. The UK law lacks clarity on the status of a man who donates his embryos that were created for himself and his partner’s treatment to a single parent.
Solutions for couples in the UK
Both parties must take independent legal advice and ensure all legal parenthood, financial obligations, and contact issues are dealt with before the transfer of the embryo.
Whilst freezing embryos is a more secure option to ensure a live birth, couples may consider also freezing their individual embryos and gametes, respectively, to provide a safety net if one withdraws their consent.
